Is A Criminal Charge Alleged To Have Occurred On A Military Base Automatically Considered A Federal Charge?
According to the Assimilative Crimes Act (18 U.S.C. § 13), if there is a crime for which there is no federal criminal statute, such as speeding, then the local law is assimilated or adopted as the law of the federal property. That applies not only to military bases but to federal parks and any other federal land or property. Whether you are military or civilian, if you commit a crime on federal property, it will either be a crime under federal law or under the federal Assimilative Crimes Act. For example, if you are pulled over for speeding on a military base, you will be issued a citation and that citation will be addressed in federal magistrate court. Usually the local federal court will send a magistrate court judge out to the base on a periodic basis to hear those cases and address them, though sometimes they require you to report to the actual local federal courthouse. Even speeding is technically a federal crime on federal property, since it is made a crime through the Federal Assimilative Crimes Act.
In general, the Uniform Code of Military Justice, which addresses military crimes, will apply only to military members. (There can be some exceptions, for example in war time and for contractors operating with the military.) However, simple crimes like speeding or DUI are not typically going to be addressed under the UCMJ. Even if you are a soldier, they will still address those matters in the civilian federal magistrate court.
Will I Automatically Be Assigned A Military Defense Attorney And Why Do I Need To Hire A Civilian Attorney Instead Or Both?
If you are a civilian, you will not be assigned a military defense attorney. If you do not make enough money to hire an attorney, you could qualify for a detailed civilian defense counsel (also known as a public defender). Otherwise, you will need to hire one. If you are in the military and charged with a crime, whether you will be given a military defense attorney depends on what the charges are and how they are brought forward. If you are charged in federal magistrate court or civilian court, no, you will not be entitled to a detailed military defense attorney. Only if you are a military member who is charged with a crime under the Uniform Code of Military Justice will you be provided a military defense attorney (from Trial Defense Services). You do not have to hire a civilian attorney; however, it is highly recommended that you do so. If you hire a civilian defense counsel, they are allowed to work in conjunction with your detailed military defense counsel. Two heads are always better than one and I have found that my biggest successes in defending soldiers and military members at a court martial have come when I have been hired to work in conjunction with a detailed military defense attorney.
An important thing to note is that you will not receive a detailed military defense counsel until you are actually formally charged. If find yourself in a situation and you know you might be getting in trouble criminally, you may want to go ahead and hire a civilian attorney to help guide you through the process and make sure you don’t do anything to jeopardize the case that may be coming down the road. A military defense counsel will not be provided to you until you are formally charged, but a lot of things happen before formal charges come. A lot of times, for example, the Army’s Criminal Investigative Division (“CID” for short) will try to question you. The last thing you want to do is go in and speak to anyone about criminal allegations without advice of counsel beforehand or there with you if you decide to give an interview (which normally is not in your best interest, though I have had success in a few cases in making prospective charges go away through the conduct of a carefully planned interview with the investigative authorities). That is one very good reason to hire a civilian defense attorney early on rather than waiting until you have been formally charged and then being eligible to receive the assistance of a detailed military defense counsel from Trial Defense Services.
Will My Civilian Attorney Have Access To Everything He Needs On Base Including Evidence, Witnesses, And The Alleged Crime Scene?
Your civilian attorney will be entitled to the same access as a military defense counsel would be. They will be allowed the normal disclosure of evidence and documents by/from the government. It is often advantageous to use not only a civilian defense counsel but also your detailed military defense counsel. The military defense counsel often knows the right people to contact or the right channels of communication to use to more quickly obtain information and documents that might be needed for the case.
What Are The General Steps In A Military Related Criminal Case?
In the military, there are several ways to address offenses committed by military members. We have administrative options, non-judicial punishment options, and judicial options. Administratively, a service member can be subjected to counseling by the command or even separation from service. If you are subjected to administrative separation procedures (in the Army this would be through Army Regulation 635-200), you will receive formal notice, and if you have six or more years of service, you will be entitled to an Administrative Separation Board. The Administrative Separation Board is like a trial, although it is administrative and not judicial.
If you are subjected to an Administrative Separation Board, you have the right to detailed military defense counsel at no cost. I recommend using that counsel plus a hired civilian attorney, as two working in conjunction will usually obtain better results than one working alone. If you have less than six years of service, there is little due process and it is up to the first field grade commander (usually the battalion commander in the Army, who is normally a Lieutenant Colonel) to decide whether to separate you. Normally, you will be allowed to submit written materials in response to the proposed separation. You can also request an audience with the commander to try to address the situation and tell them why you should not be separated.
The next level of adverse action the military can take against you is non-Judicial punishment, or in the Army, an Article 15. In the Navy, it is called Captain’s Mast. This is basically a mini-hearing or trial that takes place in front of the commander only – the commander is judge and jury, all in one. There are two levels of Article 15 in the Army; one is Company Grade, which is administered by the company grade commander (normally a Captain or O3), and field grade, which is usually administered at the battalion commander level (normally a Lieutenant Colonel or O5). Field grade punishment can be more severe than company grade punishment, including reduction in rank, forfeiture of paying allowances, and extra duty. You are entitled to detailed military defense counsel for an Article 15. Additionally, you are allowed to retain a civilian attorney. In an Article 15 proceeding, the commander will call and hear from witnesses on behalf of the Government (the military), and you are allowed to ask for witnesses to be present and testify on your behalf, as well as to give a statement yourself. Anything you say can be used against you, so it is highly recommended that you use at least your detailed military counsel to help you decide what evidence and witnesses to present and how.
You have a right to refuse or “turn down” an Article 15 and to demand a court martial, which is the third level by which the military can address criminal misconduct. The court martial is the military equivalent of a trial and there are three types of courts martial you can be subjected to: a summary court martial, a special court martial, and a general court martial. A summary court martial is like a glorified Article 15. You do not have a jury or a panel for a summary court martial; just a single officer, who will review the facts, legal precedent, and sentencing guidelines before issuing a decision. You are allowed to present witnesses and to testify, just as in Article 15. If you’re found guilty in the summary court martial, you can be sentenced to up to 30 days of confinement, 45 days of hard labor, restriction to a particular area for 60 days, one month of reduction in pay, and reduction in rank. Unlike Special and General Courts-Martial, a summary court martial conviction does not result in a criminal record like a normal court conviction.
A Special Court-Martial is reserved for somewhat more serious offenses. It mirrors the civilian criminal trial and includes the normal processes of discovery, pretrial motions, a trial, and sentencing. A special court martial is presided over by a military judge. You will be detailed a military defense counsel and the government is represented by a “trial counsel” or a trial attorney, who fulfills the same role as would a prosecutor or “DA” (District Attorney) in the civilian world. At this level, you can request and demand that you have a jury, which is called or known as a court-martial “panel” in the military. You can be sentenced up to one year of confinement, six months of pay forfeiture, three months of hard labor, and/or a bad conduct discharge through a Special Court-Martial.
Speaking of discharge, it should be noted that there are five types of discharge from the military: honorable, general, other than honorable (OTH), bad conduct (BCD), and dishonorable (DD). A special court martial can give you a bad conduct discharge (BCD); a general court martial can give you a dishonorable discharge (DD). If you are subjected to administrative separation, the worst you can get is an other than honorable discharge (OTH).
A general court martial is reserved for the most serious offenses and provides you the right to a panel or a jury with at least five members for non-capital offenses, and at least ten members for capital offenses. There is a military judge presiding over it. The court martial process closely resembles criminal procedure but it has some important differences. When the charges are initiated, they are initiated with another military member, usually the commander, swearing out charges against you. The commander will sign a form swearing that you committed one or more offenses under the Uniformed Code of Military Justice. Once those charges are sworn against you, then it is up to the chain of command to decide whether and how to proceed with them.
Normally, the general officer level commander will retain authority to refer to special and general court martials. Summary court martials are normally referred by battalion commanders. Once the charges are preferred, they are read to the military member. This is kind of like a civilian arraignment. They are advised of their charges and they are eligible to go and consult with free detailed military defense counsel. At that point, they should also consider hiring a civilian attorney to assist. They will be given a day to appear before the military judge to enter a formal plea of either guilty or not guilty. Oftentimes, the defense counsel will engage in plea negotiations with the government prior to the entry of an initial plea so that if the accused and his attorney decide that a plea deal is the best thing for them, they can enter into that. You can also reserve (delay) the initial entry of a plea, if you wish, normally.
If you decide to go to trial, you can ask for a jury, or a panel. The court martial trial resembles civilian court trials. Each side is allowed to present evidence and cross-examine witnesses. The military judge will instruct the panel members on the applicable law and then the panel will issue a decision. If the accused is found guilty, then you move into a sentencing phase and have a separate sentencing hearing, where both sides are allowed to present witnesses and evidence. The rights of the accused, under Uniformed Code of Military Justice, closely mirror those of any criminal accused person in federal or state court. They include the right to be informed of the charges against you, to remain silent, to have defense counsel, and to be protected against double-jeopardy.
If I’m Found Not Guilty In Military Court, Does That Mean Civilian Charges Will Also Be Dropped?
Under the United States Constitution, there is a concept known as “double jeopardy,” which stands for a proposition that someone cannot be prosecuted twice for the same crime. However, the concept of double jeopardy only applies at each sovereign level. That means the federal government cannot prosecute you twice for the same crime. That means the state cannot prosecute you twice for the same crime. However, it does not mean that the federal government and the state government are prohibited each separately taking a bite at the apple (each separately prosecuting you for the same crime), because they are considered different “sovereigns” (different governments).
I was, for a time, a “Trial Counsel” or military prosecutor for and in the United States Army. When we had serious crimes committed, such as sexual abuse of minors, we would coordinate closely with the state authorities to do what we called a “Double Tap.” By “double tap,” we meant that the military would prosecute the defendant at a military court martial, and that the state would also prosecute the military member in state court. This is not considered a violation of the prohibition against “double jeopardy” because you are being prosecuted by two different “sovereigns” or government entities.
Accordingly, if you are acquitted or found not guilty in a military court martial, that does not mean that you cannot still be prosecuted, tried, and convicted in the civilian court. It is done often with serious cases and the very reason they do that is to make sure that a conviction and an appropriately harsh sentence results. It is very important in negotiating the waters of criminal charges that you work with military and/or civilian defense counsel who are knowledgeable about this and make sure all areas of possible prosecution are addressed.
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